Australian administrative law is that body of law that defines the extent of the powers and responsibilities of administrative agencies of Australian governments and defines the challenge to the exercise of such powers. The Australian administrative law originated and developed in English and Australian common law, which has undergone significant statutory codification and a shift in focus toward judicial review within tribunals with extensive jurisdiction.
Australia possesses well-developed ombudsman systems and Freedom of Information legislation, both influenced by comparable overseas developments. Its notice and comment requirements for the making of delegated legislation have parallels to the United States. Australia's borrowings from overseas are still largely shaped by its evolution within a system of parliamentary democracy that loosely follows a Westminster system of responsibility and accountability.
History
The constitutional framework and development of administrative law in Australia was highly influenced by legal developments in the United Kingdom and United States. At the end of the 19th century, the British constitutional theorist A. V. Dicey argued that there should be no separate system of administrative law such as the droit administratif which existed in France. As a result, Australian administrative law before World War II developed in an unplanned way.
The present administrative law is largely a result of growing concern about control of bureaucratic decisions in the 1960s. In response a set of committees was established in the early 1970s, whose recommendations constituted the basis for what became known as the "New Administrative Law". The most important of these, the Kerr Report, recommended the establishment of a general administrative tribunal which could review administrative decisions on the merits, codification and procedural reform of the system of judicial review, and the creation of an office of Ombudsman. These proposals were put into practice with the passing of a package of federal statutes: the Administrative Appeals Tribunal Act 1975, the Ombudsman Act 1976, the Administrative Decisions (Judicial Review) Act 1977, and the Freedom of Information Act 1982. Some of those have since been replicated in States and Territories.
Judicial review
The grounds for challenging administrative action were developed at common law and, in relation to the federal government, have been codified in the Administrative Decisions (Judicial Review) Act 1977. The kinds of error which would give rise to judicial review appeared to have been identified with reference to a list of categories such as relying on irrelevant considerations, improper purpose, Wednesbury unreasonableness, error of law, breaching the hearing or bias rulesDr Bonham's Case (1610) 8 Co Rep 113b at 118 per Coke CJ of natural justice. (2005) 33(1) Federal Law Review 141.
One of the most important features of common law systems, considered to be an aspect of "equality before the law", is that judicial review is conducted by the ordinary courts and there are no special administrative or constitutional courts. A. V. Dicey observed in 1885: "In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit." Superior courts of general jurisdiction are traditionally regarded as having inherent jurisdiction to review administrative actions.
Section 75 of the Constitution of Australia provides that the High Court shall have original jurisdiction in matters including "(i) arising under any treaty (ii) affecting consuls or representatives of other countries (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party" (iv) between states or residents of different states, or between a state and a resident of a different state and "(v) in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth." Original jurisdiction of High Court. Since this jurisdiction is conferred by the Constitution, it can be removed only by amending the Constitution, which requires a national referendum. Mode of altering the Constitution. Nor, by the same token, can it be restricted; for example, jurisdiction over decisions made under a particular statutory provision cannot be ousted by a privative clause. Section 76 of the Constitution allows the Commonwealth parliament to legislate for additions to the High Court's original jurisdiction; such additions can be removed or altered by repealing or amending that legislation. Additional original jurisdiction.
The Federal Court has also been vested with original jurisdiction "with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth".(1). This mirrors s75(v) of the Constitution, however it is important to keep in mind that the Federal Court is a creature of statute and therefore its jurisdiction is relatively easily changed by repealing or amending the Judiciary Act 1903.
"Matters"
The High Court's original jurisdiction is over "matters" as provided in Constitution sections 75, and 76. The Court has held, with a view to separation of powers, that the category "matter" is confined to issues that are appropriate for judicial determination, although the justices have taken a range of views upon what is appropriate.. In general, however, the issue will constitute a "matter" if it requires an immediate determination of the legal rights and interests of an individual.. (1986) 16(2) Federal Law Review 212. In addition, hypothetical issues are not regarded as justiciable, since not involving a "matter".. Further, whether a claim is justiciable may depend on whether the decision would rely upon "legal grounds" rather than "political considerations"..
Justiciability
Under the doctrine of a strict separation of powers, courts can review only the "legality" (the legal validity) of executive decisions and actions, and not their "merits"... This was emphasised by the High Court in Attorney-General (NSW) v Quin (1990), where Brennan J stated:
17. ... The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone..
However, the distinction between legality and merits can be difficult to make.. (1983) 13(3) Federal Law Review 269.
Unlike in the United States, and in the United Kingdom,, where the House of Lords accepted that specific exclusions exist. there is no doctrine forbidding the courts from reviewing "political questions".Re Ditfort; Ex Parte Deputy Commissioner of Taxation (NSW) FCA 490 (1988) 19 FCR 347. While no specific exclusion exists it is likely that the courts would be reluctant to intervene in certain matters. Historically, the courts have generally not inquired into certain classes of administrative actions, such as decisions exercising the vice-regal "prerogative powers".. or that involve foreign policy, a declaration of war, national security or the award of official honours. However, there is no general rule preventing this, and the courts sought to focus more on the individual circumstances of application and the nature of the power being used rather than categorical dismissal based on government powers.; (1989) 9(3) University of Tasmania Law Review 316..
The High Court has refused to rule on an Attorney-General's decision not to intervene in a case,. and to intervene in the politically sensitive area of national security beyond the scope of judicial review... Furthermore, the justiciability of prerogative decisions cannot arise under the Administrative Decisions (Judicial Review) Act 1977 (Cth) as the Act is limited to decisions made "under an enactment" of the Commonwealth.
In addition, hypothetical issues are not justiciable. Similarly, polycentric disputes involving complex policy issues relating to the economic, political and social consequences, which are often marked by numerous, complex and intertwined issues, repercussions, and of the interests and people affected, (2001) 23(1) Sydney Law Review 19 at p. 26. could result in a finding the matter was non-justiciabile or a reluctance of the court to intervene. (1979) 92 Harvard Law Review 353 at pp. 394-5.
Standing The common law traditionally requires a plaintiff to show standing before being given the right to take action......
A 'special interest' in the subject matter of the action will confer standing on an individual. In order to prove a 'special interest', the plaintiff must demonstrate that they were affected to a substantially greater degree than or in a significantly different manner to the public. Only a select few cases exist where a person has gained standing with no 'special' interest in the matter. The plaintiff needs special interest peculiar to himself. "Special damage" is not limited to actual pecuniary loss and the words "peculiar to himself" do not mean that the plaintiff, and no one else, must have suffered the damage.
Claims based solely on public interest, an emotional or intellectual concern, or a mere desire to enforce a public duty will not confer standing.... While the High Court has favoured a more liberal approach to standing,see ; and for commentary on a more flexible approach to standing. and the Australian Law Reform Commission has called for broader rules of standing,. there has been a reluctance to embrace 'open' standing as favoured by Canadian courts.For the Canadian approach, see .
In order to bring an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), the applicant must be "a person who is aggrieved" by a reviewable decision made under an enactment. An aggrieved person is defined as a person whose interests are (or will be, or would be) "adversely affected by the decision", and can show that the grievance which will be suffered is beyond that which he or she has as an ordinary member of the public.See also .
Reasons for an administrative decision Administrative and judicial decision-makers are required under law to provide a written instrument, typically a written statement of reasons for their decisions. It is a statutory requirement for Statements of Reasons to be provided to an applicant for review under Commonwealth law for decisions of Commonwealth courts and administrative decision-makers under Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and similarly under Section 269 of the Administrative Review Tribunal Act 2024 (Cth).
Future The Administrative Review Council conducted a comprehensive survey of federal judicial review of administrative action and delivered its report in September 2012.]
Administrative Appeals Tribunal
The Administrative Appeals Tribunal (AAT) conducts independent merits review of administrative decisions made under Commonwealth laws. The AAT can review decisions made by Commonwealth ministers, departments and agencies. In some circumstances, decisions made by state governments, non-government bodies or under Norfolk Island law can also be reviewed. Within the scope of merits review, the Tribunal's duty is to make the correct or preferable decision in each case on the material before it..